Galloway and Galloway and Anor

[2014] FamCA 568

FAMILY COURT OF AUSTRALIA

GALLOWAY & GALLOWAY AND ANOR [2014] FamCA 568

FAMILY LAW – PRACTICE AND PROCEDURE – INJUNCTIONS –Where the Applicant seeks the urgent listing of an application in the Family Court for an anti-suit injunction restraining the Second Respondent from pursuing his application in the Supreme Court – Whether an urgent listing of the Applicant’s application is in the interests of justice – Whether there are circumstances justifying an order for costs

Family Law Act 1975 (Cth)
Succession Act 1981 (Qld)

APPLICANT: Ms Galloway

FIRST RESPONDENT: Mr Galloway

SECOND RESPONDENT: Mr A Galloway

FILE NUMBER: BRC 5141 of 2014

DATE DELIVERED: 21 July 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 21 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Treston QC with Ms Minnery of Counsel

SOLICITOR FOR THE APPLICANT:

Phillips Family Law

SOLICITOR FOR THE FIRST 

RESPONDENT:

Barry Nilsson Lawyers

COUNSEL FOR THE SECOND RESPONDENT: Mr Williams by telephone

SOLICITOR FOR THE SECOND RESPONDENT: Merthyr Law

Orders

It is ordered that

1. The Wife’s application for an urgent listing for an application for an anti-suit injunction be dismissed.

2. The Wife pay the costs of and incidental to this hearing of the First Respondent Husband and the Second Respondent to be agreed or assessed, if not agreed, on a party and party basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Galloway & Galloway and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5141 of 2014

Ms Galloway

Applicant

And

Mr Galloway

First Respondent

And

Mr A Galloway

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Galloway Snr is the mother of the husband in property settlement proceedings before this Court pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. It is acknowledged by the wife in these proceedings that if Ms Galloway Snr had testamentary capacity there would be no jurisdiction or power under the Act to grant any injunction against Ms Galloway Snr restraining her in the exercise of her testamentary capacity as she sees fit. Ms Galloway Snr in fact, on the evidence before me, lacks testamentary capacity.

3. Division 4 of Part II of the Succession Act 1981 (Qld) (“the Succession Act”) and specifically s 21, provides power for the Supreme Court to, inter alia, make an order authorising a will to be made or altered in the terms stated by the court on behalf of a person who lacks testamentary capacity. The application is to be made on leave of the court pursuant to s 22; and s 23 sets out the information required, including, inter alia, in subsection (f):

   any evidence available to the applicant of the person’s wishes;

4. Section 24 of the Succession Act specifies the matters the Supreme Court must be satisfied of before giving leave for the application. Relevantly, it provides in subsection (d) that a court giving leave under s 22 may give leave only if the Court is satisfied of, inter alia:

   the proposed will, alteration or revocation is or may be a will, alteration or revocation that the person would make if the person were to have testamentary capacity;

5. Understood in these terms, those provisions provide a statutory source of power for the Supreme Court to effect by order on behalf of a person lacking testamentary capacity that which the person would do if they were not so lacking.

6. Ms Galloway Snr’s husband, Mr A Galloway, has regularly invoked the jurisdiction of the Supreme Court to hear and determine his application under those provisions.

7. Ms Galloway, the wife in these proceedings, is named as a respondent to those Supreme Court proceedings.  They have been set down for a two day trial commencing in two days hence, on 23 July 2014.

8. However, the wife seeks the urgent listing of an application in this Court effectively for an anti-suit injunction which, if granted, would restrain Mr A Galloway from pursuing his Supreme Court application and the forthcoming trial.

9. It seems to me that to justify such an urgent listing, given the nature of the application and its potential effects against the background of a Supreme Court trial due to commence in two days, I need to be satisfied that it would be in the interests of justice to so list the application. 

10. I am not so satisfied for these essential reasons. First, it has not been demonstrated to my satisfaction, even on a prima facie basis, that this Court has jurisdiction under the Act to grant the injunction sought. Secondly, it has not been demonstrated to my satisfaction that, even if jurisdiction under the Act exists, it could not be exercised by the Supreme Court in the forthcoming trial. Finally, if it is contended by the wife in these proceedings that the Supreme Court application is designed to achieve some improper purpose, that is a contention that clearly can be raised before, and adequately dealt with by the Supreme Court in the forthcoming proceedings.

11. For these reasons the application for urgent listing is denied.

12. There is also an application by each of the respondents to this application for costs of and incidental to today’s hearing.

13. Ms Treston of Queen’s Counsel on behalf of the wife opposes any order for costs being made on the basis that this hearing occurs at the instigation of the Court rather than being sought by her client.  However, it seems to me that the application and this hearing arises because the wife sought an urgent listing of her application.  As will be clear from what I have already said, it was an application lacking in merit. 

14. For these reasons, I am satisfied that there are justifying circumstances within the meaning of s 117 of the Act to make an order for costs in favour of both respondents, noting also that the husband in the proceedings was named as a respondent to this application, notwithstanding that he is not a party to the proceedings in the Supreme Court.

15. I therefore refuse the application for urgent listing.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 July 2014.

Associate:

Date:  21 July 2014